Hon’ble Mrs. Soma Bhattacharjee, Member

The complaint case no. 251/2019 has been filed u/s 17 of the C.P. Act, 1986 and the suit is valued at Rs. 70,00,000/-. The Complainant Smt. Sampa Sikdar filed this case against OP nos. 1 to 5 of whom OP nos. 1 to 4 are landlords and OP no. 5 is a developer who runs a Proprietorship Firm under the name and style M/s. Saha Construction.

The facts of the case in brief are as follows:

          The landowners entered into a registered development agreement dt. 26.06.2006 with the developer / OP no. 5 for the purpose of development and construction of the proposed building on the scheduled property.

          The complainant with the intention of earning a livelihood by means of self employment for herself and her family wanted to purchase a shop room, in the said building of 913 sq. ft. super built up area, with marble flooring consisting of one toilet, together with undivided proportionate share of the G+3 building.

          The said shop room was completed and was ready for possession. The complainant being interested to purchase it paid the OP no. 5, total amount of Rs. 65,00,000/- on dates as follows:

          1. Cheque No.  499838 of HDFC dt. 22.01.2018 of Rs. 5,00,000/-

          2. Cheque No. 499839 of HDFC dt. 23.03.2018 of Rs. 15,00,000/-

          3. Cheque No. 499840 of HDFC dt. 24.04.2018 of Rs. 5,00,000/-

          4. Cheque No. 715356 of SBI dt. 22.01.2019 of Rs. 5,00,000/-

          5. Cheque No. 358486 of SBI dt. 24.04.2018 of Rs. 20,00,000/-

          6. Cheque No. 358488 of SBI dt. 25.06.2018 of Rs. 5,00,000/-

          7. Cheque No. 000002 of Kotak Mahindra Bank dt. 24.04.2018 of Rs. 10,00,000/-.

          Totalling Rs. 65,00,000/- (Rupees sixty five lakh only)

After payment of the total consideration amount the complainant requested the OP no. 5 to execute and register the sale deed. A date was fixed i.e. 07.01.2019 for registration and the complainant also paid the registration charges to the OP no. 5.  

          On the date of registration, to the utter surprise of the complainant, it was detected that the PAN card numbers mentioned in the deed of the landlords that is OP no. 1 to 4 and also that of OP no. 5 the developer was not matching with their original cards. So, the process of registration had to be dropped. Later it was detected that the landlord no. 3 did not possess any PAN card or any Aadhar card. In such a situation the complainant was compelled to file CC no. 251/ 2019. Notices were duly served upon the OPs. The OP no. 5 entered appearance and filed W.V denying the allegations of the complainant.

          The submission of the Ld. Advocate for the complainant is that the OPs have taken recourse to unfair trade practice to harass the complainant. The cause of action arose on 22.01.2018 when the complainant made the first payment to OP no. 5 and since the property has not yet been registered and handed over, cause of action is continuing in nature.

          The documents and materials on record are considered. The submission of the Ld. Advocate of the complainant is heard and considered. It seems on considering the evidence of the complainant that the complainant has booked the shop room for running a business for her livelihood and not for commercial purpose. Hence, she is a consumer under the C.P. Act, 1986. The OP no. 5 has failed to deliver the shop room for which he has received full consideration. This tantamounts to unfair trade practice and failure to deliver the service as per agreement. In a decision reported in 2022 (1) CPR 23 (NC) it appears that in case of delay in delivery of possession the complainant is entitled to relief. Hence the complainant is entitled to relief as prayed for.

          The CC/251/2019 therefore succeeds ex parte.

          It is ordered

The CC/251/2019 is allowed ex parte.

          The Opposite Party no. 5 is directed to refund Rs. 65,00,000/- to the complainant along with compensation in the form of interest at 9% simple interest p.a., from the date of payment of each instalment, till date of realisation, within 60 days from date of delivery of judgment. The complainant is given liberty to put the award into execution, if the Opposite Party no. 5 fails to comply with this order within stipulated date.

          CC/251/2019 is, thus, disposed of.

          Copy of the judgment be provided to all parties free of cost.